Water ResourcesSpring 2016

APALACHICOLA-CHATTAHOOCHEE-FLINT CASE STUDY

For most of this course, we have focused on disputes in the American west, an area famed for its water controversies. Today we’ll turn to the southeast, an area that under normal circumstances is one of the wettest regions of the United States. If water allocation can be a contentious and high-stakes political issue here, it probably can assume such importance anywhere.

Our study focuses on Georgia, Alabama, and Florida. The recent southeastern drought intensified a long-lasting three-state conflict over allocation of water in the Apalachicola, Chattahoochee, and Flint Rivers, which flow from Georgia and Alabama through the Florida panhandle and into the Gulf of Mexico. Narrowly, the study provides an example of an

interstate water dispute, but that dispute is multilayered, and it brings together many of the themes we have addressed in this course.

We will approach this case study somewhat differently than we have approached previous studies. The ACF dispute is quite complicated. It involves multiple laws, actors, and courts; ongoing negotiations; and lots of legal theories, all deriving from an increasingly intricate fact pattern. That means too much complexity to have a simple in-class multi-party negotiation; to negotiate effectively, one usually needs thorough knowledge of the facts and relevant legal positions, and developing that knowledge would require more time than you can possibly spend here. So instead, we’ll have more of a directed discussion, in which you’ll unavoidably have to contend with significant gaps between the amount of factual information you have and the amount you think you need. With those limitations in mind, please consider the following issues as you review the materials:

What positions your client has taken so far, and whether you consider those positions consistent with your client’s interests;

What leverage your client has available—i.e. what political or legal claims might it assert;

What weaknesses your client has; What potential areas of common interest or compromise you see, and how you

might work with other interests; What procedural avenues you would prefer to use, and which you might prefer to

avoid; and What data gaps you would try to fill.

The materials also are somewhat different from the materials for previous case studies. Several authors have written good and concise overviews of the ACF dispute, and rather than reinvent the wheel, I’ve simply attached some of that writing.

Atlanta, Georgia Apalachicola Bay, Florida

Attachments 1 and 2 provide overview discussions of this particular dispute. The first article excerpt is particularly useful for its description of the environmental values at stake. The second provides a good synopsis of the negotiating positions taken by the parties. Both also provide some history of the dispute. That history will be repeated in several other readings, but you may find you have to read it from three or four different sources before the pieces all start to fit together.

- J.B. Ruhl, Water Wars, Eastern Style: Divvying Up the Apalachicola-Chattahoochee-Flint River Basin, JOURNAL OF CONTEMPORARY WATER RESEARCH AND EDUCATION, June, 2005, pp. 47-49.

- Benjamin L. Snowden, Bargaining in the Shadow of Uncertainty: Understanding the Failure of the ACF and ACT Compacts, 13 N.Y.U. ENVTL. L. J. 135, 135-41, 147-51, 160-72 (2005)

Attachments 3 and 4 discuss some of the water rights issues arising from the Army Corps of Engineers’ delivery of Lake Lanier water to the Atlanta area. How secure do you think Atlanta’s water rights are?1

- Southeastern Federal Power Customers, Inc. v. Geren, 514 F.3d 1316 (D.C. Cir. 2008)(excerpts)

- Stacy Shelton, Water War: Court Rulings Crucial to State, ATLANTA JOURNAL AND CONSTITUTION, August 17, 2008, at A1.

Attachments 5 and 6 provide background on some of the Endangered Species Act issues raised by the dispute, and explain how the ESA so far has been used by the dispute’s participants. These materials just skim the surface of a very complex set of issues, but they should at least enable you to do some issue spotting.

- Alabama v. Army Corps of Engineers, 441 F. Supp. 2d 1123 (N.D. Ala. 2006)

- Brent Kallested, Florida Plans to Sue Corps of Engineers in Water Fight, ORLANDO SENTINEL, June 21, 2008, at B8.

1 As we’ll discuss in class, a later case put Atlanta back in a somewhat stronger position. But we’ll consider the case study based on the facts as they existed in 2008.